IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
November 29, 2012
WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard Seeborg United States District Judge
ORDER GRANTING MOTION TO DISMISS
Maria Perez took out an adjustable rate "pick a payment" mortgage secured by her home 21 from World Saving Bank, FSB, in March of 2005. World Savings Bank subsequently changed its 22 name to Wachovia Mortgage, FSB. Thereafter, Wachovia Mortgage was merged into Wells Fargo 23 Bank, N.A. Perez, representing herself, filed a complaint in June 2012, alleging that Wachovia 24 violated the Truth in Lending Act (15 U.S.C. §1601, et seq.) and the California Unfair Competition 25 Law (Cal. Bus. & Prof. Code § 17200, et seq.), as well as made fraudulent omissions, breached a 26 contract, and breached the covenant of good faith and fair dealing, in giving her the mortgage.
Defendant Wells Fargo has moved to dismiss Perez's complaint.
It appears that Perez has abandoned this action. She did not file an opposition to the motion 2 to dismiss, nor did she appear at the hearing on that motion. For this reason alone, defendant's 3 motion to dismiss may be granted. For the reasons discussed below, going to the merits of Perez's 4 claims, the motion to dismiss is granted with prejudice. 5
I. MOTION TO DISMISS
Defendants note that Perez's complaint is substantially identical to
the Corrected Second
Amended Class Action Complaint in Mandrigues, et al. v. World Savings,
Inc., et al., No. C-07-8
04497-JF (RS), a class action challenging World Savings Bank's
practices in connection with 9 making adjustable rate "pick a payment"
residential mortgages between August 1, 2003 and 10
December 1, 2008. See infra II. The Mandrigues case led to In re
Wachovia Corp. "Pick-A
Payment" Mortgage Marketing and Sales Practice Litigation in which the
court certified a class and
approved a class action settlement. Plaintiff is included in the
definition of the class that was
certified in that case, as she concedes in her co
mplaint by alleging that she opted out of the proposed
class action settlement. Perez's allegation that she opted out of
the settlement is contradicted by the 15 official court record in that
case. Her name does not appear on the opt-out list. See infra II.
Therefore, the class action settlement is res judicata to her present individual suit, which makes the same legal claims, arising out of the same factual circumstances, against the same parties, as the 18 Mandrigues case. See Citizens for Open Access to Sand & Tide, Inc.v. Seadrift Ass'n, 60 Cal. App. 19 4th 1053, 1065 (1998). 20
Furthermore, even if Perez's claims were not barred by the settlement
in the prior litigation
over Wachovia's adjustable rate mortgage practices, she has waited
too long to bring them. She 22 took out her mortgage in 2005, but did
not file her lawsuit until seven years later in June 2012. The 23
applicable statutes of limitations for her claims have long passed.
See Truth in Lending Act, 15 24
U.S.C. § 1640(e) (one year statute of limitations for damages claims);
Cal. Code of Civ. Proc. § 25
338(a) (three year statute of limitations for fraudulent omissions);
Unfair Competition Law, Cal. 26
Bus. & Prof. Code §17208 (four year statute of limitations); Cal. Code
of Civ. Proc. § 337 (four year 27 statute of limitations running from
February 15, 2008, when she made her last payment under the
contract). There is, therefore, no need to address the remaining
arguments advanced by the 2 defendants on the merits, including
preemption and failure to state a claim. 3
In connection with its motion to dismiss, defendant requests that the Court take judicial 5 notice pursuant to Federal Rule of Evidence 201(b)(2) of certain documents: (1) an adjustable rate 6 mortgage note signed and dated March 31, 2005 by plaintiff; (2) a deed of trust signed and dated Office on April 8, 2005, as DOC-5005-0121802-00, (3) a certificate of corporate existence dated 9 November 19, 2007, from the Office of Thrift Supervision , Department of the Treasury, (5) the charter of Wachovia Mortgage, FSB, dated December 31, 2007, and signed by the Office of Thrift Supervision, (6) the official certification of the Comptroller of the Currency stating that effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, N.A., which then merged with and into Wells Fargo Bank, N.A., (7) a notice of default and election to sell 15 under deed of trust dated June 24, 2008, and recorded in the official records of the Contra Costa County Recorder's Office on June 27, 2008, as DOC-2008-0144977-00, (8) a notice of trustee's sale dated April 6, 2010, and recorded in the official records of the Contra Costa County Recorder's 18 14, 2010 and recorded in the official records of the Contra Costa County Recorder's Office on November 10, 2010, (10) the Corrected Second Amended Class Action Complaint in Mandrigues, 21 et al. v. World Savings, Inc., et al., No. C-07-04497-JF (RS), (10) the Order Granting Final 22 Approval of Class Settlement in In re Wachovia Corp. "Pick-A-Payment" Mortgage Marketing and 23 157-2 in In re Wachovia Corp. "Pick-A-Payment" Mortgage Marketing and Sales Practice Litigation, No. 09-MD-02015-JF, (12) Exhibit A, the signed agreement and stipulation of class 26 action, to Docket No. 112 in In re Wachovia Corp. "Pick-A-Payment" Mortgage Marketing and 27 Sales Practice Litigation, No. 09-MD-02015-JF, and (13) the final judgment in In re Wachovia 28 NO. C 12-03407 RS
II. REQUEST FOR JUDICIAL NOTICE
March 31, 2005 by plaintiff and recorded in the records of the Contra Costa County Recorder's 8 April 21, 2006, from the Office of Thrift Supervision, Department of the Treasury, (4) a letter dated 10 Office on April 16, 2010, as DOC-2010-0075688-00, (9) a trustee's deed upon sale dated October 19 Sales Practice Litigation, No. 09-MD-02015-JF, (11) Exhibit C, the exclusion list to Docket No. 24 Corp. "Pick-A-Payment" Mortgage Marketing and Sales Practice Litigation, No. 09-MD-02015-JF.
The request is granted as to document 1, because it is a true and
correct copy of a document
referred to in the complaint on which the complaint necessarily
relies, as to documents 2 and 7 3 through 9 because they are true and
correct copies of official records of the Contra Costa County
Recorder's Office, as to 3 through 6 because they are true and correct
copies of documents that 5 reflect official acts of the United States'
executive department, and as to 10 through 13 because they 6 are true
and correct copies from the official records of the United States
District Court for the 7
Northern District of California in cases involving the same parties as
those in this case. 8
For all of the reasons set forth in this order, Perez's case must be dismissed. Dismissal is 10 with prejudice because Perez has abandoned this action and, given that her claims are res judicata, there is no set of facts that Perez could plead in an amended complaint that would entitle her to recover.
IT IS SO ORDERED.
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